The Eritrean Notary Public in the Context of Global Notaries System Habtemicael WELDEGIORGIS, Eritrea Key Words: Eritrean notary public, transactions of immovable property, cadastre system, global notaries system, notarial functions and duties, professional ethics. Abstract The Eritrean Notary Public was established, simultaneously with the cadastral system at the end of the 19th century during the Italian colonial administration. Both the public notary and the cadastre system were originally constituted with the sole purpose of guaranteeing security of property ownership for the Italian settlers in complete violation of the natives’ property rights. But, later they were gradually transformed to embrace Eritrean citizens’ property. Their complementarities continued during the several occupational administrations until Eritrea attained its independence in May 1991. Both the notary public and the cadastre offices, as mutually complementary institutions worked in close harmony. They played their roles, respectively in the authentication of legitimacy of titles as well as contracts of transactions, and the certification of ownership over land and immovable property erected overland. In due course, the two institutions had experienced difficult periods and survived attempts at their elimination, particularly during the Ethiopian military rule in the mid-1970s. Notary public has a long history of providing legal security for individual and legal person’s property. And nowadays, its need has grown tremendously with the advent of globalization and internationalization of the market and businesses for use of legal services. However, the services it provides vary from country to country depending on the countries’ historical traditions and policies. This paper provides an overview of the roles of notaries’ public world-wide, states the role the Eritrean notary public has played in securing the legitimate title of ownership through ensuring lawful transactions of immovable property, and calls for reinstating the notary public offices in all regions of Eritrea as well as broadening the scope of its services beyond witnessing contracts of agreements of immovable property transactions. 1. GLOBAL OVERVIEW OF THE NOTARIES SYSTEM 1.1 Historical Development The notary public (‘notary’, notarial officer’, or ‘public notary’), which is a public office, has a long history that traces its origin back to the Fertile Crescent of ancient Babylon, the Greek city-states, and later adopted under the Roman Empire (Civil Law Notary, 1 ---------------------------------------------------------------------------------------------------------------------------- The Eritrean Notary Public in the Context of Global Notaries System Habtemicael WELDEGIORGIS, Eritrea FIG International Congress 2014 ‘Engaging the Challenges, Enhancing the Relevance’ Kuala Lumpur, Malaysia, 16 - 21 June 2014 Wikipedia, 2010, p. 10). The origin of the notary is also found in Hammurabi’s Code, dated at least 2000 BC, and in 360 BC in ancient Greece there were ‘public officials’ drafting contracts for citizens (Malavet, 1994, in Berhane, 2000, p.2). At the beginning a notary (the ‘notarius’) was one who took down statements in shorthand and wrote them out in the form of minutes, but at later times the title notarius was applied to registrars attached to courts of provincial governors, secretaries of governors and the highest class of officials in the government. Despite the collapse of the Western Empire in the 5th C AD, the notary continued with some importance in many parts of Continental Europe throughout the Dark Ages (Wikipedia, 2010, p. 4). The civil law experienced its renaissance during medieval Italy from the 12th C, and the ‘notary was established as a central institution of that law’, which still continues in countries whose legitimacy is derived from that civil law (Ibid, p.4). The development of modern ‘notariat’ happened with the opening of the school of ‘Notariato’ in 1228 in Bologna, Italy that influenced Europe. Notarial acts were later acted in France (1270), Portugal (1315), Spain (1333), and in Germany a modified Lain type notary (‘natar’) exists. We now find the word notary, ‘notaire’ in French, ‘notaio’ in Italian, ‘notario publico’ in Spanish and ‘notaris’ in the Netherlands (Berhane, 2000, p.3). On the other hand, in England a separate development of the common law notary public, ‘free from most of the influences of the Roman Law’ (Wikipedia, 2010, p.4), was introduced during the 13th and 14th centuries. The World Book Encyclopedia (1994, p. 550) defines Notary Public as ‘an officer authorized by state law to certify certain documents and to take oaths’. Wikipedia, the Free Encyclopedia (2012, p.1) also defines ‘notary public’ in the common law countries as a public officer constituted by law to serve the public in non-contentious matters concerned with estates, deeds, powers of attorney, and foreign and international business, whereas in the civil-law notaries or Latin notaries they are lawyers of voluntary private civil-law offices who draft, take, and record legal instruments known as notarial acts or deeds for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power on behalf of the state (Wikipedia, 2011, p. 1). Thus, in contrast to common law notaries, civil-law notaries are able to provide legal advice and prepare instruments with legal effect. 1.2 Notarial Requirements and Practices Both the civil law and common law notaries agree that many documents, such as deeds, businesses, etc. must be notarized before becoming legally effective. The purpose is to protect those who use them from forgeries. That is why the ‘notary signs the document to certify that the individual who signed it appeared in person and swore to the notary that the signature on the document is genuine’. The notary records that fact and stamps a seal on the document. 2 ---------------------------------------------------------------------------------------------------------------------------- The Eritrean Notary Public in the Context of Global Notaries System Habtemicael WELDEGIORGIS, Eritrea FIG International Congress 2014 ‘Engaging the Challenges, Enhancing the Relevance’ Kuala Lumpur, Malaysia, 16 - 21 June 2014 Unlike the current practices of developing countries such as Eritrea, the functions of notaries public go far beyond the simple contract agreement of transactions of property, witnessing oaths and acknowledgement of deeds and conveyances to embrace administration of oaths and affirmations, take affidavits and statutory declarations, witness and authenticate the execution of certain classes of documents, protest notes and bills of exchange, provides notice of foreign draft and provide notarial copies. The duties and functions of notaries public are summarized in Brooke’s Notary (p.19) as follows: ‘A notary public…whose public office and duty it is to draw, attest or certify under his official seal deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney: to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used,…’ Depending on historical traditions, and policies of countries, the professional requirements and appointing bodies for notaries public vary from country to country. For example, a notary in Great Britain and Canada is appointed by the Court of Faculties, in the Unites States by a Governor or State Secretary or in some cases by the State Legislature and in Australia (excepting in Queensland) by the Supreme Court of the relevant State or Territory, in New Zealand (and Queensland) by the Archbishop of Canterbury acting through the Master of Faculties (Wikipedia, 2010, p. 6) and in India by the Central Government (Wikipedia, 2012, p.9). But it has to be noted that each state in the USA has different requirements for becoming a notary public and performing notarizations. The notaries public functions in the USA and Canada are limited to domestic affairs and documents are valid domestically. They are not lawyers, but take relevant courses to properly carryout their duties restricted to the administration of oaths, witnessing signatures on affidavits and statutory declaration, providing acknowledgements, certifying true copies, etc. (Wikipedia, 2010, p. 8). On the other hand, the civil-law notaries, or Latin Notaries whose main practices are property conveyance and registration, contract drafting, commercial transactions, successions and other estate related matters (Notary Public in Russia, Wikipedia, 2010, p. 2) are lawyers of private law and unlike lay notaries public provide legal advice and prepare instruments with legal effect (Civil Law Notary, Wikipedia, 2010, p. 1). Civil-law notaries are judges and lawyers who specialize in notarial law and prepare notarial acts that are public instruments. In France, they are appointed by the Ministry of Justice, in the Netherlands by the Crown, in Germany by the state, etc. In practice the Eritrean notaries, fixed in number between two and four were legal experts and appointed by the Judiciary and the statement in the Eritrean Notaries Act of 1956 ‘well versed in laws relating to his office’ implies similarity with civil law notaries. In the People’s Republic of China (PRC), the Public